2008 Annual Survey of violations of trade union rights - Peru
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Peru, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca7532.html [accessed 30 May 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Peru has been witnessing the systematic deterioration of its workers' rights. Freedom of association, organising and collective bargaining rights are constantly violated, as observed with the widespread harassment of unionised workers along with selective and mass dismissals. Recent developments were the criminalisation of social protest and the authorisation of the use of arms by the police during demonstrations. The brutal police repression of demonstrators protesting against the dismissal of 1,950 workers claimed the lives of two miners and an 18-month-old baby. Anti-union policies are deployed across the textile sector.
Trade union rights in law
Freedom of association: The Constitution recognises the right of public and private sector workers to organise and establishes freedom of association as an indicator of that right. Workers may form unions on the basis of their occupation, employer affiliation or geographic territory. The unions may also affiliate to international workers' organisations.
Some restrictions: Temporary workers are not allowed to join the same union as permanent workers. A minimum of ten members are required to form a union; however, in certain occupations the threshold is 20 and the maximum requirement is 50. That requirement is too high by international standards, and as a result there are no unions at all in small- and medium-sized enterprises.
There are also some restrictions on foreign workers' membership of trade unions as well as on their access to leadership posts. Similar restrictions apply to migrant workers.
Collective bargaining: The Constitution enshrines the right of workers in the private and public sector to bargain collectively. It stipulates that a union has to represent at least 20 workers to become an official collective bargaining agent. The law governing workers in the public administration restricts the scope for collective bargaining.
Right to strike – Ministry has veto: Workers have the right to strike, but this right is limited by the fact that unions must have the permission of the Ministry of Labour.
The Law governing Productivity and Competitiveness imposed by Fujimori remains: After the demise of Fujimori, almost all the repressive laws were revoked, though not Decree No. 728 or, therefore, the 1997 Law governing Productivity and Competitiveness. That law legalised unfair dismissals, i.e., the option of sacking workers without any justification in return for payment of severance pay fixed by the law. That way companies could put pressure on union members to accept the compensation set by the law. The law also made the various forms of contractual relationship extremely flexible. Faced with the threat of their contract not being renewed, workers have been choosing not to join a union. The law also established the possibility of collective dismissals in various circumstances. Although this requires prior approval by the administration, the Labour authorities have no legal competence to decide whether the collective dismissal includes an unfair number of trade union leaders or members, so the procedure has also been used for anti-union purposes.
The trade union movement has repeatedly criticised the employers' obstruction of the adoption of the new Labour Law.
Export processing zones (EPZs): There are six EPZs in the country: Ilo (Moquegua), Desaguadero (Puno), Zofratacna (Tacna), Matarani (Arequipa), Tumbes and Paita (Piura). They are governed by special regulations, which allow for greater flexibility in labour contracts, the widespread use of temporary labour and the setting of wages on the basis of supply and demand, all of which restricts the ability of unions to organise and bargain collectively.
Trade union rights in practice and Violations in 2007
Background: The government of Alain Garcia, after one year in office, aroused strong criticism among trade unions and civil society groups. A number of demonstrations were held throughout the year in protest at its neoliberal and anti-union policies, leading to a call for social dialogue, which ultimately broke down following the government's failure to honour the agreements concluded. Trade unions, civil society organisations and political parties held two national days of action, one on 1 July and the other on 8 November, calling on the government to address the demand of the workers and society at large that it should not approve the Free Trade Agreement with the United States, which would further weaken workers' rights. Despite the opposition of the majority of the population, the Peruvian Congress approved the signing of the FTA with the United States in the first week of December.
Trade union and workers' rights violations remained widespread under Alain Garcia's government. In spite of the electoral promises, after one year in office the government had shown a total disregard for the demands not only of the workers but the population at large.
"Tercerización": the increasing use of contract labour: The government is continuing the trend of contracting out many government services, leading to more job losses in state-owned enterprises and in public administration whilst making it harder for workers to organise. Trade union organisations took a range of actions to press for the repeal of legal instruments DL 728 (authorising the use of contract labour) and DL 892 (confiscating the workers' share in the profits of their companies). They also demanded the passing of the Contract Labour Law (Ley de Tercerización Laboral) as a first step towards improving the working conditions and living standards of contract workers and, ultimately, eliminating this form of outsourcing in the country.
Discrimination against trade unionists: Discrimination against trade unionists is common practice in most companies in Peru. Despite the numerous laws and regulations introduced, such as the 2002 Law on Collective Dismissals, to counteract the massive job losses in state-owned enterprises and local governments during the Fujimori era, when it comes to reinstatement, union leaders and activists are discriminated against and not given the chance to return to their posts.
Informal workers: Around 70% of the active population is employed in the informal economy and receives salaries of between 300 and 330 sols. There are laws to protect domestic workers and porters, but they are not enforced, thus leaving them with no protection.
Unionised workers dismissed: In March, 36 unionised workers at a university hospital, the Clínica Médica Cayetano Heredia de la Universidad Particular Cayetano Heredia, were arbitrarily dismissed after denouncing the hospital on several occasions for operating as a money-making service and generating profits, despite having been set up as a not-for-profit health care and learning institution. The letters of dismissal alleged that the hospital had ceased to operate, which was not in fact the case. They also stated that the workers' contracts had expired, though they all had indefinite contracts. Four trade union leaders were among the workers dismissed (Flora Álvarez Vargas de Rodríguez, social assistance secretary; Elizabeth Florencia Veja Tenemas, assistant secretary for organising; Luís Atilio Ruiz Burgos, assistant secretary for rights; and José Soto Mosqueda, technical and statistics assistant secretary).
Peruvian workers file complaints with the ILO through the CGTP and other union organisations: In March, a complaint was filed with the ILO regarding the formulation of the Supreme Decrees that infringe the Law on the Teaching Profession, violating workers' and trade union rights. A complaint was also lodged regarding organising and collective bargaining rights violations at Panamerica Televisión SA (Panam Contenidos SA).
Brutal repression of trade union protest: On 15 June, the national police fired tear gas bombs and bullets at members of the local community and workers from the mining company Casalpa-Unidad Americana, located in Huarochirí in the Central Sierra of Lima. The mining community and the workers were protesting at the dismissal of two leaders of their union and the subsequent closure of the mining operations following the formation of the union, which had left 1,950 workers jobless. The brutal police action claimed the lives of two miners and an 18-month-old girl, and injured around nine people.
Union leader dismissed at Nestlé: On 14 June, Nestlé dismissed David Rázuri Olano, rights secretary of the Sindicato Unico de Trabajadores, after he denounced the company's repeated failure to comply with certain clauses of the collective agreement signed in January 2006.
Union leaders arrested: Following the launch of a national teachers' strike on 5 July, the national police arrested Robert Huaynalaya, the leader of the strike committee of the education workers' union SUTEP (Sindicato Unitario de los Trabajadores en la Educación de Perú), on 12 July. Another 13 leaders were also arrested and charged with disturbing public order and confronting the authorities. The former secretary of SUTEP, Caridad Montes, also reported a police raid on the union's headquarters and the arrest of three leaders at the office.
ZINCSA dismisses workers for forming a union: On 8 August, a week following the formation of a union at ZINCSA Industrias Nacionales, the company dismissed six union leaders. It fired another six workers the following week and did not renew the contracts of another three workers, all union members. The management has since been intimidating and harassing the workers in a bid to crush support for the union.
Companies discriminate against union members and restrict collective bargaining: Petro-Tech is among the many companies using anti-union tactics, discriminating against unionised workers and preventing them from receiving part of their share in the profits as an advance payment. In addition, after almost eleven months of unsuccessful collective bargaining, the union was forced to abandon the face-to-face negotiations. The list of demands included better pay and working conditions.
Refusal to recognise union: The Banco del Trabajo refuses to recognise or deal with the union organised at the bank, SUTRABANTRA (Sindicato Único de Trabajadores del Banco del Trabajo). It refuses to grant union leave to the leaders, places pressure on its temporary workers to stop them from becoming members and is constantly sending messages to the staff pressing them to reject the union. The institutions of the Peruvian state have made no attempt to end these anti-union practices, ignoring the various complaints filed, dragging out the judicial processes regarding the dismissed workers and suspending, through a legal ruling, the collective bargaining gains secured by the union.
The demonstration called by the national federation of university lecturers FENDUP (Federación Nacional de Docentes Universitarios de Perú) on 17 October was brutally suppressed by the police, using batons, tear gas and water canon. Luis Lazo Tovar received a blow to the head, leaving him seriously injured; several other lecturers were left bruised and battered.
Textile firms violate workers' rights: Anti-union campaigns are waged by most textile companies. Fibras Industriales blocked the initiation of the collective bargaining process and stopped the members' dues from reaching the union. At Topy Top, the management is engaging in harassment and selective dismissals to stop the workers from complaining about the long working hours, the dismissal of union leaders and noncompliance with the payment of social benefits.
The unions at Textiles San Sebastián, Universal Textil, Industrial Textil, Industrial Textil Creditex and Fibras Industriales held a number of demonstrations throughout the year to demand respect for organising and collective bargaining rights along with an increase in pay, the reinstatement of dismissed workers and the elimination of "export labour contracts".
At the end of November, following the formation of a union (the Sindicato de Trabajadoras y trabajadores de la empresa ICADE S.A.C) at ICADE S.A.C., a company linked to the export company Confecciones Diseño y Color S.A., the general secretary José Tipani was fired whilst on sick leave. A week later, the company dismissed another 13 union members, alleging that their contracts had expired. The company succeeded in convincing three members to leave the union by offering them bribes. The workers reported that the company had checked their debt records with a number of shops and offered to pay off the monies owed in return for their leaving the union.
Multinational harasses unionised workers: Cervercera Ambev Peru harassed unionised workers, creating a climate of tension in a bid to stop other workers from joining the union; the company refused to pay overtime and to let the workers take their break entitlement.